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DOCKET NO. A-1446-13T3









November 5, 2014


Submitted October 28, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3861-11.

Peter N. Davis & Associates, L.L.C., attorneys for appellant (Nicholas Barone, on the brief).

Robinson Burns, L.L.C., attorneys for respondents (Timothy P. Burns, of counsel; Anthony V. DiAntonio, on the brief).


In this slip and fall case, plaintiff appeals from an October 11, 2013 order granting summary judgment to Westland Garden State Plaza Limited Partnership (hereinafter "defendant" or "the mall").1 We affirm.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo.

Applying these standards, we discern the following facts from the motion record. Plaintiff slipped on clear liquid located on a floor of the mall and sustained injuries. She was unable to see the liquid or determine for how long it had been present. There is a food court in the mall one level below from where plaintiff had fallen.

Defendant filed a motion for summary judgment arguing that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact that it had actual or constructive notice of the dangerous condition. Plaintiff asserted that she was relieved of the obligation to prove notice pursuant to the mode-of-operation rule. She contended that defendant's method of business operating the food court created the hazardous condition. Plaintiff argued that she was therefore entitled to an inference of negligence and that there existed disputed factual issues regarding whether defendant took steps to avoid the hazard.

The judge conducted oral argument and determined that there were no factual issues as to whether defendant had notice of the hazardous condition. He also concluded that the mode-of-operation rule was inapplicable. He explained that mode-of-operation cases generally focus on a particular type of operation, such as supermarkets, where one would reasonably expect that a product might spill onto the floor. Here, the judge concluded that the mall's method of doing business did not fit the typical mode-of-operation framework. As a result, he entered the order under review.

On appeal, plaintiff argues that summary judgment is precluded by the existence of genuine issues of disputed material fact regarding whether defendant had constructive notice of the hazardous condition. Plaintiff also contends that the judge misapplied the mode-of-operation rule by interpreting it too narrowly.

Looking at the evidence in the light most favorable to plaintiff, we conclude that there are no genuine disputed factual issues as to whether defendant had actual or constructive notice of the clear liquid on the floor.

We acknowledge that defendant owed a duty to provide a reasonably safe place for its patrons to shop. Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982). Such a duty "requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). However, "the mere [e]xistence of an alleged dangerous condition is not constructive notice of it." Arroyo v. Durling Realty, L.L.C., 433 N.J. Super. 238, 243 (App. Div. 2013) (alteration in original) (internal quotation marks and citation omitted).

Here, defendant produced an affidavit from a manager of the mall who explained that defendant entered into a contract with a company to provide janitorial services. The company performed regular inspections of the common walkways where the accident occurred. A cleaning log revealed evidence of liquid spillages, but it is undisputed that those incidents occurred after the accident. There is no competent evidence in the record from which an inference could be drawn that defendant had any notice of the spilled liquid or that the mall failed to take reasonable steps to provide safe premises.

We also reject plaintiff's contention that the judge erred by failing to apply the mode-of-operation rule. There is no plausible connection between the clear liquid found on the floor where plaintiff fell and the mall's method of doing business.

In certain distinctive cases, our courts have eliminated the requirement that a plaintiff prove that a property owner had actual or constructive notice of a hazardous condition. Arroyo, supra, 433 N.J. Super. at 244. The elimination of such a duty is premised on the notion that "as a matter of probability, a dangerous condition is likely to occur 'as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents.'" Ibid. (quoting Nisivoccia, supra, 175 N.J. at 563). In those cases, the plaintiff has the benefit of an inference of negligence and the burden shifts to the defendant to show that it took reasonable steps to avoid the hazard. Ibid.

We have typically seen the application of the mode-of-operation rule to accidents occurring in cafeterias and supermarkets. See Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964) (where the plaintiff was injured after slipping on a slimy substance on the floor of a self-service cafeteria); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (where the plaintiff was injured after slipping and falling on a loose string bean in the vegetable section of a supermarket); Nisivoccia, supra, 175 N.J. at 561 (where the plaintiff was injured after slipping and falling on loose grapes approximately three feet from the checkout aisle of a supermarket). Here, plaintiff slipped on liquid located in an entirely different part of the mall than the food court. Thus, she did not slip and fall in a self-service cafeteria setting.

Plaintiff argues that we have extended the mode-of-operation rule to contexts other than cafeterias and supermarkets. However, the "unifying factor" between those cases and the supermarket and cafeteria cases was "a mode of operation designed to allow the patron to select and remove the merchandise from the premises without intervention from any employee of the storekeeper." Arroyo, supra, 433 N.J. Super. at 246 (internal quotation marks and citation omitted); see also O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 491-95 (App. Div. 1997) (involving a plaintiff who was injured when a golf bag fell off a shelf); Craggan v. IKEA USA, 332 N.J. Super. 53, 59, 61-63 (App. Div. 2000) (involving a plaintiff who was injured when tripping on string provided to customers in a store's loading area).

Here, the clear liquid was on the floor one level above the food court. There is no credible evidence that a patron of the mall selected and removed a container of clear liquid from a business in the mall without any intervention from a mall employee. In other words, there is no evidence that the hazardous condition was connected to the mall's "method of doing business." Nisivoccia, supra, 175 N.J. at 564. Spillage of drinks in the mall's walkways is not inherent in the operation of the mall.

Consequently, we conclude that there is no principled basis to apply the mode-of-operation rule under the facts of this case. Instead, ordinary principles of premises liability govern defendant's liability exposure, including the requirement of actual or constructive notice of the dangerous condition.


1 Improperly pled as Westfield Garden State Plaza, Westfield L.L.C., and The Westfield Group.